Again? VMWare Accused of Violating Linux Kernel’s GPL license

Can’t we all just get along? At its core, an open source software license encourages software developers to share software with their community (i.e., the community of software developers). A software author grants a software copyright license to the public in exchange for requesting or requiring recipients to share their modifications with the public. Some open source licenses are permissive (i.e., the recipient may or may not share modifications), while others are restrictive (i.e., the recipient must share modifications).

The General Public License version 2 (“GPLv2”), a restrictive open source license, requires recipients of GPLv2 licensed software to share any modifications they make to the software with the community. This licensing model allows highly creative and intelligent software developers from all over the world to collectively author great solutions for the community. Sounds great, right? Well, in the real world, not everybody believes in sharing!

Christoph Hellwig, a key Linux kernel developer, recently filed a copyright infringement lawsuit against VMWare in the district court of Hamburg in Germany. VMWare is a technology corporation that provides cloud and server software solutions to business customers all over the world. Hellwig filed the lawsuit in Germany (as opposed to in the United States) because he lives in Austria which is close to Germany. Hellwig alleges that VMWare’s ESXi product incorporated part of the Linux kernel, which is licensed under GPLv2, without abiding by the terms of the license. Such GPLv2 terms include (1) providing copyright notices of the kernel’s original authors and the modified kernel’s subsequent authors; and (2) providing a copy of VMWare’s modified source code of the kernel.

Apparently, Hellwig instituted this suit because VMWare decided it would not release the modified Linux kernel source code in compliance with the GPLv2 license. Interestingly enough, this is not the first time VMWare has been accused of wrongfully incorporating GPLv2 licensed source code.

In 2011, the Software Freedom Conservancy (“SFC”), an organization that promotes open source software, confronted VMWare about violating Mr. Erik Anderson’s BusyBox software tool, which was also licensed under GPLv2. Anderson created the BusyBox tool to make certain operations easier to use in the Linux kernel. According to the SFC, communications between the SFC, Anderson and VMWare broke down in 2014 when VMWare stated that it would not satisfy the terms of the GPLv2 license moving forward.

It is not clear why VMWare took this position in light of an arguably clear license violation. BusyBox may bring a suit in U.S. district court against VMWare, similar to the case it brought against Westinghouse Digital Electronics. In that case, BusyBox warned Westinghouse Digital Electronics about its infringing TV software that incorporated BusyBox in violation of the GPLv2 license. Yet Westinghouse continued to distribute the software. Consequently, BusyBox filed a copyright infringement suit against Westinghouse. BusyBox prevailed and was awarded statutory damages for Westinghouse’s willful copyright infringement.

The facts here are similar to the facts in BusyBox’s suit against Westinghouse. In both cases, the GPLv2 license owner warned VMWare about its infringing product; yet, VMWare chose to continue distributing the alleged infringing product in violation of the GPLv2 license. Based on what we know today, VMWare has the weaker position compared to Hellwig or BusyBox, because VMWare appears to be willfully violating the GPLv2 license. Therefore, VMWare will face an uphill battle defending its actions if BusyBox or Hellwig files a copyright infringement suit in a U.S. district court.